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“Classifying Corruption”

Yasmin Dawood has posted this draft on SSRN (forthcoming Duke Journal of Constitutional Law & Public Policy). Here is the abstract:

Why is corruption wrong? This article argues that there are two main approaches to conceptualizing the “wrong” of corruption: first, corruption as an abuse of power; and second, corruption as inequality. In addition, I claim that there is a conceptual convergence between these two approaches. As a result, many forms of corruption can be framed as either an abuse of power and/or as a violation of equality. I show that even quid pro quo corruption can be framed in equality terms — a surprising outcome given the Supreme Court’s acceptance of quid pro quo corruption and rejection of equality-based corruption.

This article also raises two queries about Lawrence Lessig’s theory of dependence corruption. My first claim is that dependence corruption is not fully consistent with an originalist understanding of corruption, and my second suggestion is that the “wrong” at issue in dependence corruption is ultimately a concern about representation.

In addition to developing a conceptual map of corruption, this article focuses on the theoretical puzzles and challenges posed by corruption. For corruption as inequality, I identify seven forms that it could take, and I show how some of these forms have manifested in the Court’s campaign finance decisions. For corruption as the abuse of power, I identify three conceptual challenges (involving corrupt political gain, the public interest, and legislative independence). I argue that these conceptual challenges make it difficult to distinguish corruption from ordinary democratic politics.